GOSAI SAKHARAM KARMENGE v. TULSHIRAM PATIL DODKE & 4 ORS.

some delay, an application for its condonation was also filed along with the appeal. The School Tribunal by the impugned order refused to condone the delay and has also dismissed the appeal on merits.

3. I have heard Mr H.A.Deshpande, Adv. for the petitioner- employee, Mr.Gadbade, Adv. for the respondent nos. 1 and 2 and Mr.Patel, A.G.P. for the Respondent Nos. 3 and 5.

4. Mr.H.A.Deshpande, Adv. for the Petitioner contends that the School Tribunal could not have decided the prayer for condonation of delay and the appeal on merits together. He further contends that the appointment of the petitioner was against a clear vacancy and as such, the finding of School Tribunal that said vacancy was reserved is incorrect. He further contends that there is no resolution passed by the Management terminating his services and in absence of resolution of Management, it cannot be said that the services of the petitioners during probation were not satisfactory. He relies upon the judgment reported in 1991 II CLR 922 (Rallis India Ltd., Madras .vs. M. Narasimha Rao and another) to state that the

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resolution which has been passed and is basis of termination ought to have been produced before the School Tribunal because, according to him, that is the basic document in which the finding about satisfactory nature of his services or otherwise has been recorded. He also relies upon the judgment of this Court reported at 2004 (3) Mh.L.J. 1078 (Madhao s/o. Somaji Sarode .vs. Jotiba Dhyan Upasak Shikshan Sanstha, Dudhala and Others), to support his argument that the prayer for condonation of delay and appeal on merits could not have been decided simultaneously. Lastly, he relies on the provisions of Section 5 of the Maharashtra Employees of Private Schools (Conditions of Service) Regulation Act, 1977 r/w. Rule 9 of 1981 Rules framed thereunder to argue that as the post was open, it was not necessary for the Management to publish advertisement and the appointment given to the petitioner without advertisement cannot be held to be bad in law. He also contends that recently the Full Bench of this Court has taken a view that approval is not necessary and he contends that it is the Management who has played mischief by appointing him without issuing advertisement and therefore, the Management must be made to pay his salary and should be directed to continue him in

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service. He argues that the appointment given to the respondent no.4 in his place is totally irrelevant and the said employee cannot come in the way of present petitioner because the claim of present petitioner has arisen before even employment was granted to that person.

5. Mr.Gadmade, Adv., on the other hand, contends that the School Tribunal has rightly considered the fact that there was no advertisement, that the respondent no.4 has been appointed after issuing proper advertisement and he belongs to reserved category. He further contends that the School Committee has passed resolution and thereafter only services of the petitioner have been terminated. He further states that as the petitioner had not completed even one year of his service, no interference is warranted in the Writ Petition.

6. The learned A.G.P. contends that the provisions of Section 5 of the M.E.P.S. Act r/w. Rule 9 nowhere permit the Management to effect recruitment without publishing advertisement. He contends that Government is paying the Management and therefore, the public revenue is made available

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to the Management through the Education Department for paying salary of in cumbents and hence, there has to be public advertisement and each of the eligible person must be given opportunity to compete for recruitment. He contends that considering the very small period of service put in by the petitioner, the Judgment delivered by the School Tribunal needs to be maintained.

7. After hearing the respective parties, I find that the School Tribunal has considered the issue more on merits by not giving any importance to the issue of limitation. It has found that the petitioner was recruited without any advertisement and as such, had no right to the post; on the contrary, appointment was given to the respondent no.4 after advertisement was issued and the Tribunal also found that he was belonging to reserved category and his appointment is also approved by the Education Department.

8. Mr. Deshpande, Adv. has tried to contend that the approval procured by the respondent no.4 is not bona fide and honest one. He points out the order passed by this Court in Writ

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Petition No. 1737 of 1994 (Arvind Murlidhar Sonwane .vs. Tulsiram Patil Dodke Vidyalaya and Others) on 19.9.1994 to state that the Division Bench of this Court directed the Management to pay salary of respondent no.4 and that direction has been mis- used by the Management and the Education Officer and approval has been given to the respondent no.4. However, I do not find it necessary to go into that controversy at all because the respondent no.4 was given appointment after issuing advertisement and he has also worked in the School and therefore, was entitled to be paid salary. If the petitioner was aggrieved by the grant of said approval, he could have challenged the order granting him approval by filing appropriate proceedings. Admittedly, that has not been done.

9. The contention that there need not be any advertisement is totally misconceived. The specific requirement of publishing advertisement provided for in Rule 9, Sub-Rule 8 of 1977 Rules is only by way of abundant precaution. It is not in dispute that the appointments are made by private Management against sanctioned posts and for that purpose the work load

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available in each School is worked out by the Education Department as per the norms laid down by the State Government in this respect. If the appointment is supported by such work load, the Education Department releases salary grants in favour of such Management and through these grants, salaries of teachers are paid. It is, therefore, apparent that the State Government is spending public revenue for education of children and in such circumstances, it is clear that when public revenue is being spent, all eligible citizens must get an opportunity to compete for such appointment. The appointment cannot be made privately or through back-door. The Judgment of the Hon'ble Constitution Bench in the case of Secretary, State of Karnatakla .vs. Umadevi, reported at AIR 2006 SC 1806 and the Judgment of the Division Bench of this Court in the case of

Uttam & Others .vs. Municipal Council, Darwha and Others

reported at 1972 Mh.L.J . 874 clearly negate the argument advanced by Mr. H.A.Deshpande, Adv.

10. Thus, I find that the very entry into service by the petitioner was not legal. He had worked only for a period of one year and he was terminated by the Management by giving

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excuse that his performance was not satisfactory. Mr. Deshpande, Adv. has tried to contend that the Head Master had replied to the representation made by the petitioner in which reason of unsatisfactory performance has not been given and the only reason putforth is that there was approval only till the Session end (1990-91) from the Education Department. However, after considering the facts mentioned above, I do not find that non-mentioning of any reason has made any difference insofar as right of the petitioner to hold the post is concerned. He relies upon the Judgment of Division Bench of Madras High Court reported in 1991 II CLR 922 (cited supra) and the Judgment of this Court reported in 2004 (3) Mh.L.J. 1078 (cited supra). But both the Judgment do not support the contention putforth by the petitioner. It is nodbout true that it is only the management which has to pass orders of termination and it appears that the Management has not passed any resolution in this case and the resolution relied upon by the employer before the School Tribunal is the resolution of School Committee only. However, considering the fact that the petitioner had no right to post and therefore, could not have been given relief of reinstatement, I find that no case is made out warranting any interference in Writ jurisdiction.

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The Writ Petition is, therefore, dismissed.

JUDGE

jaiswal

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